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Guide to Making Federal Acts and Regulations: Cabinet Directive on Law-Making

Overview:

The Cabinet Directive on Law-making is the foundation document for the Guide. It sets out the expectations of Ministers in relation to the process for making federal Acts and regulations and generally orients the activities of Government officials in this process.

Audience:

All Government officials involved in the law-making process.

Key Messages:

Officials involved in law-making activities must understand the fundamentals that underlie our system of government and laws. They must also appreciate the steps involved in these activities as well as the need to plan them.

1. Introduction

The making of law is arguably the most important activity of government. This Directive describes the framework for this activity and the principles that govern it. It is of the utmost importance that departments embarking on law-making initiatives plan and manage them in accordance with this Directive and the supporting documents issued by the Clerk of the Privy Council.

This Directive replaces the directive entitled The Preparation of Legislation, approved by the Cabinet on April 16, 1981. Its main objectives are to:

ensure that the Cabinet has the information and other support it needs to make sound decisions about proposed laws;

outline the relationship between Acts and regulations and ensure that they are viewed as products of a continuous process of making law;

ensure that proposed laws are properly drafted in both official languages and that they respect both the common law and civil law legal systems;

make it clear that law-making initiatives can be very complex and must be properly planned and managed; and

ensure that Government officials who are involved in law-making activities understand their roles and have the knowledge and skills they need to perform their roles effectively.

This Directive sets out principles and general directions on how these objectives are to be met.

2. Fundamentals of the Government's Law-making Activity

Constitutional Considerations

The Constitution Act, 1867 distributes the legislative powers of Canada between the Parliament of Canada and the legislatures of the provinces (Part VI, sections 91 to 95). The legislatures of the territories exercise legislative authority through delegation from the Parliament of Canada.

Canada's system of responsible parliamentary government is based on the rule of law. This means that laws must be made in conformity with the Constitution. The Crown retains very few regulatory powers that are not subject to the legislative or law-making process. For example, regulations governing the issuance of passports or medals and honours are still made under the royal prerogative.

Parliament may delegate regulatory authority to Cabinet (the Governor in Council), a person (such as a Minister of the Crown) or a body (such as the Atomic Energy Control Board). However, this authority remains subject to the will of Parliament and regulations made under this delegated authority are referred to as subordinate legislation.

Law-making authority in Canada is subject to a number of constraints. Parliament and the provincial legislatures are limited by the constitutional distribution of powers. They are further constrained in their law-making powers by the Canadian Charter of Rights and Freedoms, by the existing Aboriginal and treaty rights recognized and affirmed by section 35 of the Constitution Act, 1982, and by certain other constitutional provisions, such as the language rights and obligations that apply to Quebec and Manitoba.

Parliament consists of three elements: the Crown, the Senate and the House of Commons. Parliament makes laws in the form of statutes or "Acts." All three elements must assent to a bill (draft Act) for it to become law. The assent of the Crown is always the last stage of the law-making process.

All money bills must, according to the Constitution Act, 1867, originate in the House of Commons:

53. Bills for appropriating any Part of the Public Revenue, or for imposing any Tax or Impost, shall originate in the House of Commons.

Money bills are to be introduced by a Minister of the Crown. Non-money bills may originate in the Senate. The Cabinet, which consists of the Prime Minister and the other Ministers of the Crown, plays a significant role in Parliament's law-making activity, both collectively, by approving bills for introduction in Parliament, and individually, by sponsoring bills through the stages of the parliamentary process. Cabinet Ministers are in turn supported by the officials who work in government departments.

Deciding Whether a Law is Needed

Making a new law, whether by obtaining Parliament's assent to a bill or by making regulations, is just one of several ways of achieving governmental policy objectives. Others include agreements and guidelines or, more generally, programs for providing services, benefits, or information. In addition, a law may include many different kinds of provisions, ranging from simple prohibitions through a wide variety of regulatory requirements such as licensing or compliance monitoring. Law should be used only when it is the most appropriate. When a legislative proposal is made to the Cabinet, it is up to the sponsoring Minister to show that this principle has been met, and there are no other ways to achieve the policy objectives effectively.

The decision to address a matter through a bill or regulation is made by Cabinet on the basis of information developed by a Minister's departmental officials. The information must be accurate, timely and complete. To provide it, a department should:

analyze the matter and its alternative solutions;

engage in consultation with those who have an interest in the matter, including other departments that may be affected by the proposed solution;

analyze the impact of the proposed solution; and

analyze the resources that the proposed solution would require, including those needed to implement or enforce it.

In the case of a bill, the principal means for conveying this information is a Memorandum to Cabinet, which a minister must present to obtain Cabinet approval for the bill to be drafted by the Legislation Section of the Department of Justice.

When a legislative initiative is being considered, and where it is appropriate and consistent with legislative drafting principles, related matters should be combined in one bill, rather than being divided among several bills on similar subjects. A single bill allows parliamentarians to make the most effective and efficient use of their time for debate and study in committee.

Finally, caution should be taken when considering whether to include a "sunset" or expiration provision in a bill, or a provision for mandatory review of the Act within a particular time or by a particular committee. Alternatives to these provisions should be fully explored before proposing to include them in a bill.

Relationship between Acts and Regulations

Although Acts and regulations are made separately, they are linked in several ways:

Parliament creates Acts and through them authorizes regulations;

a regulation must strictly conform to the limits established by the Act that authorizes it; and

most legislative schemes depend on regulations to make them work, so an Act and the regulations should be developed together to ensure a good match.

When developing a proposal for a bill that will authorize regulations, departments should carefully consider:

who is to have authority to make the regulations;

which matters are to be dealt with in the bill; and

which matters are to be dealt with in the regulations.

Ordinarily, the Governor in Council is authorized to make regulations. A rationale for departures from this practice needs to be provided in the relevant Memorandum to Cabinet. Matters of fundamental importance should be dealt with in the bill so that parliamentarians have a chance to consider and debate them. The bill should establish a framework that limits the scope of regulation-making powers to matters that are best left to subordinate law-making delegates and processes. The following principles should also be observed:

The power to make regulations must not be drafted in unnecessarily wide terms.

Certain regulation-making powers are not to be drafted, unless the Memorandum to the Cabinet specifically requests drafting authority for the power and contains reasons justifying the power that is sought. In particular, specific drafting authority is required for powers that:

substantially affect personal rights and liberties;

involve important matters of policy or principle;

amend or add to the enabling Act or other Acts;

exclude the ordinary jurisdiction of the Courts;

make regulations having a retroactive effect;

subdelegate regulation-making authority;

impose a charge on the public revenue or on the public, other than fees for services;

set penalties for serious offences

Acts and regulations are interdependent and should be developed in conjunction with one another. Regulations may be drafted at the same time as the authorizing bill or after, depending on the situation. However, if regulations are an important part of a new legislative scheme, it may be helpful to begin developing draft regulations or at least a summary of the regulations at the same time as the bill to ensure consistency with the framework being established in the bill. When regulations are developed under an existing Act, care must be taken to ensure that they fall within the authority granted by that Act.

Importance of bilingual and bijural drafting

The Constitution Act, 1867requires federal laws to be enacted in both official languages and makes both versions equally authentic. It is therefore of primary importance that bills and regulations be prepared in both official languages. It is not acceptable for one version to be a mere translation of the other. For this reason, sponsoring departments and agencies must ensure that they have the capability to develop policy, consult, and instruct legislative drafters in both official languages. Both versions of legislation must convey their intended meaning in clear and accurate language.

It is equally important that bills and regulations respect both the common law and civil law legal systems since both systems operate in Canada and federal laws apply throughout the country. When concepts pertaining to these legal systems are used, they must be expressed in both languages and in ways that fit into both systems.

Planning and Managing Law-making Activity

The Government's law-making activity is to be planned and managed on three levels:

centrally for the Government as a whole;

departmentally; and

on a project basis.

At the first level, there is a government-wide process to co-ordinate and set priorities among proposals for bills from different departments. The Minister responsible for the Government's legislative program is the Leader of the Government in the House of Commons, who is also a Minister of State. For the public service, the Privy Council Office supports the Leader of the Government in the House of Commons in this activity. In addition, a committee of Cabinet, called the Special Committee of Council, and then full Cabinet review issues requiring decisions by Cabinet as a whole. For example, the Leader of the Government in the House of Commons seeks delegated authority from Cabinet for the introduction of Government bills.

In the case of regulations, departments and regulation-making agencies must plan their regulatory agendas for coming years and prepare reports on planning and priorities. In the fall, they must also prepare performance reports. These reports are to be tabled in the House of Commons as part of the Estimates and referred to the appropriate committees of that House.

At the second, departmental level, each department manages the legislative proposals in its areas of responsibility. It must ensure that it has allocated the resources necessary to carry its proposals through each stage in the law-making process, plan for such things as consultation, and ensure that it has the capacity to formulate policy and instruct legislative drafters in both official languages. Finally, it must also plan and allocate resources for the implementation of new laws.

At the third, project level, departments must plan their law-making activities as they relate to particular bills or regulations. These activities are to be managed as projects with tools for determining what resources are needed, what tasks must be performed and what time frames are appropriate.

3. Preparation of the Government's Legislative Program

Planning the Legislative Program

Planning the Government's legislative program begins up to one year before the opening of the session of Parliament in which the various legislative items are to be introduced. Experience has shown that the planning and preparation process should be spread over the whole year, as opposed to a short period immediately before a session. This stems both from the need for long-term planning of the legislative program as a whole as well as from the established procedure for the approval of individual bills. This procedure involves three separate steps:

Cabinet approval of the policy is sought;

if Cabinet approves, the bill is drafted, which in many cases proves to be a lengthy and difficult process in itself; and

approval of the Minister of State and Leader of the Government in the House of Commons is sought for introduction of the bill.

As part of the Prime Minister's June 1997 changes to the Cabinet decision-making system, the Special Committee of Council was given new responsibilities as a ministerial forum at the Cabinet committee level for discussing the Government's overall legislative planning and for specific legislative issues requiring decisions by Cabinet.

The Minister of State and Leader of the Government in the House of Commons is responsible for the Government's legislative program in the House of Commons, including examining in detail all draft bills.

Accordingly, departments and agencies whose Ministers are bringing forward legislative proposals are urged to keep in close contact with the Legislation and House Planning/Counsel Secretariat of the Privy Council Office, which provides support to the Leader of the Government in the House of Commons and to the Special Committee of Council. In particular, it is important to inform them of any significant changes in the timing of Ministers' plans to bring bills forward.

Request for Legislative Proposals

Immediately after the Speech from the Throne at the opening of each session of Parliament, the Assistant Secretary to the Cabinet (Legislation and House Planning/Counsel) will write to all Deputy Ministers and some Agency heads asking them to submit a list of the legislation that their Minister plans to propose to Cabinet for introduction in the next session. Subsequently, this legislative "call letter" will be sent twice a year (June and November) in order to deal with new or changing priorities.

The response to the request for legislative proposals should be submitted to the Assistant Secretary to the Cabinet within one month after receiving the request, or by a date specified in the request.

Review by Cabinet

The proposals are prioritized by the Leader of the Government in the House of Commons and a tentative outline of the legislative program for the next sitting, together with the assignment of priorities for the various proposals, are reviewed by the Special Committee of Council. The Leader of the Government in the House of Commons normally advises the Special Committee of Council and the full Cabinet of the updated legislative program twice a year.

4. Preparation of Government Bills

Cabinet Approval of Policy

As soon as is feasible after Cabinet has determined that a bill is to be introduced as part of its legislative program, the responsible department should arrange for the submission of a Memorandum to the Cabinet (MC) seeking policy approval and an authorization for the Legislation Section of the Department of Justice to draft the bill. The MC is to be prepared in accordance with supplementary documents issued by the Clerk of the Privy Council and is to be submitted to the appropriate policy committee of Cabinet and then to Cabinet. It should be submitted far enough in advance of the projected date for introducing the bill to allow sufficient time to draft it.

An MC should address the type of public consultation, if any, that the sponsoring Minister has held or expects to hold and should specify whether the Minister intends to consult on the basis of the draft bill. By tradition, draft bills have been treated with strict confidence before they were introduced in Parliament. However, in keeping with the Government's commitment to openness and consultation, sponsoring Ministers may wish to consult on the basis of draft bills. This consultation is intended to ensure that bills take into account the views of those concerned and it must not pre-empt Parliament's role in passing bills. Also, there may be cases where it would not be appropriate to do so for reasons such as the risk of giving the consulted party an unfair economic advantage. So, if a draft bill is intended to be used in consultation before it is tabled in Parliament, the MC should state that intention and ask for the Cabinet's agreement. In the case of a draft bill involving changes to the machinery of government, the approval to consult should generally be sought in a letter to the Prime Minister from the sponsoring Minister.

Drafting instructions should be annexed to the MC. However, they should not be in the form of a draft bill. Their purpose is to facilitate a policy discussion of a legislative proposal and to provide a framework for drafting a bill. Except in very rare instances, drafting instructions in the form of proposed draft legislation are not helpful. Substantial time may be required to assemble the relevant material required as part of drafting instructions. The policy discussion at this stage will make it possible to develop reasonable estimates of the time likely to be required for drafting the legislation. These estimates are essential to planning and managing the Government's legislative agenda.

Drafting Bills

It is essential that both the Legislation and House Planning/Counsel Secretariat and the Secretariat to the appropriate policy committee of Cabinet be informed by the sponsoring department as to any significant departures from the approach to the bill agreed to by Cabinet.

As stated above, both language versions of legislation are equally authentic and must respect the bijural nature of Canada's legal system. Draft legislation must be prepared in both official languages and sponsoring departments must ensure that they have the capability:

to instruct in both languages;

to respond to technical questioning from drafting officers in either language and relating to each legal system; and

to critically evaluate drafts in both languages.

It is not sufficient for a drafting officer and the instructing officer to reach full agreement on the technical adequacy of one language version of a draft bill. Both versions must meet the same standard of technical adequacy in the eyes of those qualified to critically evaluate them and the legislation must be capable of operating in both legal systems. This requirement can be particularly onerous when a legislative proposal is based on a precedent from another jurisdiction where legislation and related information, often of a very technical nature, is available in one language only. In such circumstances, it may be necessary to build into the planning and drafting process a significant time factor to allow for the development, testing, and finalization of appropriate terminology for both versions.

Another important consideration relates to the drafting of preambles and purpose clauses. Preambles can often provide important background information needed for a clear understanding of the bill or explain matters that support its constitutionality. However, when a bill amends existing legislation, the preamble is normally excluded from consolidated versions of the legislation. In order to ensure public awareness of, and access to, background information for an amending bill, a purpose clause may be considered as an alternative because it can be integrated into the consolidated legislation. Both preambles and purpose clauses must be carefully reviewed by the Department of Justice for appropriate language and content.

Review of Bills by the Leader of the Government in the House of Commons

Once a bill has been drafted and approved by the responsible Minister, the Legislation Section of the Department of Justice will arrange for its printing and for copies to be sent to the Legislation and House Planning/Counsel Secretariat (L&HP/C) of the Privy Council Office before the bill is reviewed by the Leader of the Government in the House of Commons.

At this stage the sponsoring department:

prepares material for use in explaining the bill to parliamentarians and members of the public or for distribution;

prepares a draft statement to be used by the Minister when the bill is referred to Committee;

submits a revised and updated communication plan if the original attached to the MC is no longer appropriate.

The Leader of the Government in the House of Commons reviews the bill and its consistency with relevant Cabinet decisions. The Leader reports to Cabinet on this review and seeks delegated authority to arrange for introduction of the bill in either the House of Commons or the Senate.

Following Cabinet approval, L&HP/C submits the bill in its final form to the Prime Minister or the Leader of the Government in the House of Commons for signature, together with the royal recommendation in the case of bills that require expenditure. The preparation of royal recommendations is the responsibility of L&HP/C.

5. Parliamentary Processes and Amendments

Introduction and Readings

Government bills are usually introduced by the sponsoring Minister. They proceed through three readings in both the Senate and the House of Commons and are studied by committees of each House. Detailed information on these proceedings can be found by consulting publications such as the Précis of Procedure, published by the House of Commons, and The Senate Todayand Rules of the Senate of Canada, published by the Senate.

The timing and place of introduction are decided either by the Cabinet on the recommendation of the Leader of the Government in the House of Commons or by the Leader of the Government in the House of Commons under authority delegated by Cabinet.

Notice of introduction in the House of Commons is given to the Clerk of that House by the Assistant Secretary to the Cabinet (Legislation and House Planning/Counsel) only when instructed to do so by the Leader of the Government in the House of Commons. When introduction is in the Senate, the timing of introduction is decided by the Leader of the Government in the House of Commons in consultation with the Leader of the Government in the Senate. In both cases, the Assistant Secretary informs the sponsoring Minister of the timing of introduction.

Timing of the Second Reading debate, Report Stage, and Third Reading in the House of Commons is the responsibility of the Leader of the Government in the House of Commons. The timing of the stages of debate in the Senate is the responsibility of the Leader of the Government in the Senate.

During a committee's consideration of a bill, whether in the House of Commons or the Senate, the sponsoring Minister or the Parliamentary Secretary attends the committee meetings to assist the deliberations by ensuring that the Government's position is expressed. This is of particular importance in situations where amendments to the bill may be proposed.

Amendments

If the sponsoring Minister wishes to move or accept an amendment after introducing a bill, the following procedure should be followed before the amendment is moved:

amendments that are merely technical may be agreed to by the sponsoring Minister with no need for Cabinet approval;

amendments that have an impact on the policy approved by Cabinet or that raise policy considerations not previously considered by Cabinet are subject to the same procedure as the initial proposal, namely, the submission of an MC for consideration by the original policy committee of Cabinet and approval by the Cabinet;

urgent major amendments need not follow the full procedure referred to above, but may be approved by the Prime Minister and the Chair of the relevant policy committee of Cabinet together with other interested Ministers.

All amendments moved or accepted by the Government must be drafted or reviewed by the Legislation Section of the Department of Justice.

Royal Assent

The final stage in the enactment of a bill by Parliament is Royal Assent. The timing of Royal Assent ceremonies is arranged by the Leader of the Government in the House of Commons in consultation with the Leader of the Government in the Senate.

6. Coming into Force

An Act has the force of law upon Royal Assent, unless it provides otherwise. Quite frequently, an Act provides that it, or any of its provisions, comes into force on a day or days to be fixed by order of the Governor in Council. These orders are prepared by officials in the department that administers the Act and are submitted to the Special Committee of Council by the responsible Minister. If approved, they are sent to the Governor General for signature and published in the Canada Gazette. Draft orders should be submitted for approval well in advance of the day or days that they propose for provisions to come into force.

7. Regulation-making

The main elements of the regulation-making process are established by the Statutory Instruments Act. They include requirements that:

draft regulations be examined by the Clerk of the Privy Council in consultation with the Deputy Minister of Justice;

regulations be transmitted to the Clerk of the Privy Council to be registered and published in the Canada Gazette;

regulations be referred to the Standing Joint Committee of the Senate and the House of Commons for the Scrutiny of Regulations (Committee).

With respect to the last requirement, the Committee regularly communicates with departments in carrying out its mandate. For that purpose:

Each department is to have one or more designated person(s) to whom the Committee may address its inquiries.

All inquiries are to be coordinated by a departmental tracking office (e.g., departmental parliamentary relations office, departmental correspondence unit, legislative and regulatory affairs unit). This office is to establish a tracking system to facilitate timely responses to all correspondence from the Committee.

Each department is to establish appropriate timelines for responding to inquiries, depending upon the complexity of the issue. If a timeline cannot be met in any particular case, the Committee is to be advised of the need for an extension.

If an inquiry involves a legal issue, the department's Legal Services Unit is to be consulted.

Each Deputy Minister is to receive a status report from their departmental tracking office on a regular basis. A copy of the status report is to be provided to the Minister's office.

These elements of the regulation-making process are supplemented by the analytical and procedural requirements of the Regulatory Policy.

8. Conclusion

This Directive sets out the objectives and expectations of the Cabinet in relation to law-making activities of the Government. Departmental officials involved in these activities are expected to be aware of the Directive and to follow the instructions it contains. They are also expected to use the supplementary documents that the Clerk of the Privy Council may issue to provide detailed guidance on planning and managing the development of legislation to ensure that the Cabinet's objectives and expectations are met.